As a society becomes more secular, what happens to religious rituals, customs, and ways of life that cannot be explained or justified in secular terms? When the freedom to engage in such practices is no longer presumed to be a good because of a firm commitment to religion as a social value, little stands in the way of its becoming just one more special interest. Religious freedom is then thrown into the bin of social oddities, to be haggled over and negotiated against whatever other idiosyncratic predilections one happens to find in there..
Over at the Law and Religion Forum, we are hosting an online symposium on a very interesting article by Professor Vincent Phillip Muñoz, “Two Concepts of Religious Liberty: The Natural Rights and Moral Autonomy Approaches to the Free Exercise of Religion.” Muñoz’s basic claim is a historical one about the nature of the Founders’ constitutional commitment to religious freedom: They supported a narrow, but powerful, right of religious free exercise that protected fairly absolutely what were thought to be certain core features of religiosity—such as worship—but that did not protect the panoply of religious “interests” that might be dear to any given constituency.
As a classical liberal, I regard libertarianism as I would a wilder, younger brother. Libertarianism is younger because it is largely a product of modernity, while classical liberalism is more rooted in the 18th and 19th centuries. It is wilder, because it posits that the public-good function of the state is more limited and the externalities less frequent than I and other classical liberals believe. Yet the philosophies are close kin: they both see that the state poses a perpetual danger to its citizens, only disagreeing at the margin on when it is necessary to relax the strictures on governmental action. And at least with the most sensible libertarians and classical liberals, these disagreements are largely empirical.
Thus, in a race where the Republican candidate for President is careering away from classical liberalism and the Democratic candidate is flirting with the socialist elements of her party, a classical liberal might find a natural home in the Libertarian Party. Sadly, however, the Libertarian ticket has taken some important positions hostile to liberty. Begin with religious freedom.
It has puzzled some that evangelicals and other religious people are supporting Donald Trump. He is twice divorced, boasts of many affairs, and seems to know nothing of scripture. In religious matters, he has reminded me of Rex Mottram, an industrialist turned politician and figure of fun in Brideshead Revisited, about whom it was said that “he has no religious curiosity or natural piety.”
But for those concerned about the religious rights, Trump’s indifference pales before Hillary Clinton’s hostility. Of course, Clinton does not say she is hostile, but her core beliefs and political coalition will collide again and again with religious liberty, as surely as have those of President Obama. It was his administration that filed an extraordinary amicus brief stating that churches should receive no more protection for their employment decisions than secular associations, despite the Free Exercise and Establishment Clauses. It was his administration that has tried to force religious organizations to be complicit in advancing access to devices they deemed immoral, even though there were other ways of providing access.
There is every reason to believe that Clinton will continue to encourage government entrenchment on religious liberty and freedom of conscience.
Perhaps we should add this affirmation to the orientation session for federal judges: The Supremacy Clause means the Constitution and laws arising under it outrank their state counterparts. It does not mean the judiciary is supreme over the coordinate national branches of government. Judge David Bunning of the Eastern District of Kentucky did not quite assert the latter in ruling this week, correctly, that an elected county clerk cannot exempt herself from a decision, however errant, of the Supreme Court. He flirted with it, though: “Our form of government will not survive," he wrote, "unless we, as a society, agree to respect…
In the 16th century, Europe experienced a long series of nasty and violent religious wars. With Christianity splitting into many sects, each one wanted its own political power. Once a sect gained that power, it used it to oppress the others. The oppressed sects then fought that much harder to achieve their own independence.
Into this fray of religious warfare, Thomas Hobbes entered and proposed a solution: Instead of fighting about which religion would hold sovereign power so as to extend its influence, we could all just collectively decide that sovereign power would only promote peace and stability for its citizens. By defining sovereignty down, Hobbes hoped to avoid bloody religious warfare. Amidst this redefined sovereignty, Hobbes proposed picking one overriding religion—it didn’t really matter which one since all were equally untrue—and imposing it on all.
At the Supreme Court’s oral argument on the constitutionality of same-sex marriage, several justices asked questions about the effects of same-sex marriage on religious freedom. These questions might not appear directly relevant to the question of whether the federal Constitution secures a right to same-sex marriage. But they are politically relevant because the method by which same-sex marriage is achieved may make a substantial difference to the accommodations to people who because of reasons of religious conscience do not want to encourage this social arrangement or be connected to its creation.
A political scientist would understand the attempt to fashion a federal right to same-sex marriage as an effort to change the political status quo by constitutional litigation. In states that to date do not recognize same-sex marriage, advocates of the institution would no longer have to negotiate with their opponents or compromise on such matters as whether religious colleges should be required to give benefits to same-sex couples.
Denise A. Spellberg, Associate Professor of history and Middle eastern Studies at the University of Texas at Austin, is the author of the highly regarded work, Politics, Gender, and the Islamic Past: The Legacy of ‘A’isha Bint Abi Bakr. She was involved in controversy in 2008, when she reviewed the galleys of a novel, The Jewel of Medina, for Random House, and criticized the work on many grounds including warning a number of times that the book might instigate violence among some Muslims, specifically against Random House and its employees. Random House then withdrew publication of the book, but the novel was subsequently published in a number of countries, including the United States.
In this work with the eye-startling title, Thomas Jefferson’s Qur’an: Islam and the Founders, Spellberg investigates all manner of references among the founding generation to Islam in order to assert two themes 1) that the founders’ references to “imaginary Muslims” led them to include other minorities, such as Jews, Catholic Christians, and Deists, as full citizens, and 2) that America is now in the grip of “Islamophobia,” and many Americans are attempting to “disenfranchise” Muslims from their rights as full citizens.
This next episode of Liberty Law Talk is with Steven Smith on his new book The Rise and Decline of American Religious Freedom. Our conversation explores Smith's challenge to the dominant academic narrative that the Supreme Court's mid-twentieth century decisions imposing secular neutrality vindicated the religion clauses of the First Amendment. In this version, their essence was to secure a government free of religion, tout court. But what if the First Amendment's original public meaning and subsequent practice reflected a very different essence? Our conversation begins with the history of the ratification of the First Amendment. What do we make of…